Republic of the Philippines

SUPREME COURT
Manila City
Tampakan Indigenous Peoples Association (TIPA), et. al,
Petitioner,

G.R. No. 1234567

-versusDepartment of Environment and Natural Resources (DENR), and Office of the Executive
Secretary, Public Respondents
and
Sagitarius Mines Incorporated (SMI), Private Respondent
x-------------------------------------------------------------------------x
MEMORANDUM
COME NOW PUBLIC RESPONDENTS, through the undersigned counsels of The
Office of the Solicitor General of the Republic, unto this Honorable Supreme Court most
respectfully submit and present this Memorandum in the above-titled case and aver that:
I.

BACKGROUND

Sagittarius Mines Incorporated (SMI), a company majority-owned by global mining firm

Xstrata Plc., legally obtained the right to develop the Tampakan.

The provincial government of South Cotabato enacted the province's Environmental

Code which bans the use of open-pit mining (the technology that will be used to extract
the minerals from Tampakan).

After the EIA process, DENR Secretary Ramon Paje denied the ECC on the basis of the
provincial ordinance of South Cotabato.

SMI however appealed this decision to the Office of the President which reversed it on
the basis of the argument that the mining law prevails over a Local Government Code and
obtained an Environmental Clearance Certificate (ECC).

Seeking a better revenue deal, SMI asked for a new Financial Technical Assistance
Agreement with the government.

Oppositors used this opportunity to raise the issue of constitutionality already settled in
La Bugal v Ramos; followed by petitions asking the Supreme Court to issue Writs of
Kalikasan and Continuing Mandamus against the DENR and SMI. They also asked the
Court to declare the mining law unconstitutional, asking it to reverse La Bughal vs.
Ramos, pointing out among others that E.O. 79 issued by President Aquino clearly
concludes that the current law is disadvantageous to the Philippines.

II.

ISSUES AND FACTS

A. Constitutionality of the Mining Law (RA.7942)

Petitioners bring up issues already settled in the case of La Bugal v. Ramos. RA No. 7942
provides for the states control and supervision over mining operations. And the FTAA, as
previously settled and as petitioners continue to raise, does not mean that foreign contractors
are free do whatever they may please.
SECTION 2. Full Enforcement of Environmental Standards in Mining.
The Government in general, and the Department of Environmental and Natural Resources
(DENR) in particular, in coordination with concerned LGUs, shall ensure that environmental
standards in mining, as prescribed by the various mining and environmental laws, rules, and
regulations, shall be fully and strictly enforced, and appropriate sanctions meted out against
violators thereof.
In line with the above, only those who are able to strictly comply with all the pertinent
requirements shall be eligible for the grant of mining rights, pursuant to the applicable
provisions of RA No. 7942.
SECTION 12. Consistency of Local Ordinances with the Constitution and National
Laws/LGU Cooperation.
The Department of the Interior and Local Government (DILG) and the LGUs are hereby
directed to ensure that the exercise of the latters powers and functions are consistent with and
conform to the regulations, decisions, and policies already promulgated and taken by the
National Government relating to the conservation, management, development, and proper
utilization of the States mineral resources, particularly RA No. 7942 and its implementing
rules and regulations, while recognizing the need for social acceptance of proposed mining
projects and activities.
LGUs shall confine themselves only to the imposition of reasonable limitations on mining
activities conducted within their respective territorial jurisdictions that are consistent with
national laws and regulations.
Concerned government agencies, in particular the DENR, the Department of Budget and
Management (DBM), and the Department of Finance (DOF), are hereby directed to ensure the
timely release of the share of LGUs in the National Wealth pursuant to Section 289 of RA No.
7160, or the Local Government Code of 1991. These agencies are likewise directed to study
the possibility of increasing LGUS share as well as granting them direct access similar to
existing arrangements with the Philippine Export Zone Authority (PEZA).
LGUs, DENR, and the MGB working together shall strictly implement RA No. 7076, to
ensure the protection of the environment, address various issues in small-scale mining, and
ensure that violators thereof are subjected to appropriate administrative and criminal liability.
Section 26 and 27 of Local Government Code
B. Applicability of the Writ of Kalikasan
With all due respect to the honorable court, a writ of kalikasan is inapplicable in this case.
The DENR has issued the ECC (Environmental Compliance Certificate) subject to its
regulation and power to revoke under its discretion. Such writ will only be a surplus, a
waste of money, time and effort.
A.M. No. 09-6-8-SC
Section 1. Nature of the writ. - The writ is a remedy available to a natural or juridical
person, entity authorized by law, peoples organization, non-governmental
organization, or any public interest group accredited by or registered with any
government agency, on behalf of persons whose constitutional right to a balanced and
healthful ecology is violated, or threatened with violation by an unlawful act or

omission of a public official or employee, or private individual or entity, involving

environmental damage of such magnitude as to prejudice the life, health or property of
inhabitants in two or more cities or provinces.
A.M. No. 09-6-8-SC Rule 7 Section 2 (c)
(c) The environmental law, rule or regulation violated or threatened to be violated, the
act or omission complained of, and the environmental damage of such magnitude as to
prejudice the life, health or property of inhabitants in two or more cities or provinces.
With all due respect to the honorable court, a writ of kalikasan is inapplicable in this case.
The DENR has issued the ECC (Environmental Impact Assessment) subject to its
regulation and power to revoke under its discretion thus there was no violation of law
committed. Such writ will only be a surplus, a waste of money, time and effort. Your
honor, the Writ of Kalikasan has no application in the certain case because it was not
clearly shown that there was a violation of E0 79 and an environmental damage to two
cities.
C. DENRs alleged actions in excess of its jurisdiction
a. Conduction of EIA (Environmental Impact Assessment)
Section 70 of RA No. 7942 provides for the implementation of the
Environmental Impact Assessment (EIA) upon compliance with Sections 26
and 27 of the Local Government Code which call for the prior consultation
with local government units, NGOs or and other concerned sectors in the
community. Peoples organizations and other NGOs shall be encouraged to
participate in the observation of requirements.
Section 17 of E.O. 79 he DENR and the Environmental Management Bureau
(EMB) shall study the adoption of the Programmatic Environmental Impact
Assessment (PEIA). It specifically provides that the EMB under the DENR
shall have jurisdiction to study and conduct the EIA. Complying with all
requirements established by law, the conduction of the EIA by the DENR-EMB
stands valid.
b. Issuance of ECC (Environmental Compliance Certificate)
Section 2 of E.O. 79 provides that the DENR in coordination with concerned
LGUs, shall ensure that environmental standards in mining, as prescribed by
the various mining and environmental laws, rules, and regulations, shall be
fully enforced, with strict compliance and appropriate sanction.
Such issuance of the ECC does entail a free pass to molest all resources in the
assigned area. Under the supervision of the DENR and LGUs, non-compliance
to established environmental and mining laws shall lead to revocation of the
certificate as well as the imposition of penalties.
SMI shall be required to ensure the steps in vegetative restoration, engineering
structure, land use, and soil and water management; as well as provide the
community with whatever resources they might need ie. alternate water source.
D. Applicability of Section 26 and 27 of the Local Government Code
The Code provides:
Section 26. Duty of National Government Agencies in the Maintenance of Ecological
Balance. - It shall be the duty of every national agency or government-owned or controlled
corporation authorizing or involved in the planning and implementation of any project or
program that may cause pollution, climatic change, depletion of non-renewable resources,
loss of crop land, rangeland, or forest cover, and extinction of animal or plant species, to

consult with the local government units, nongovernmental organizations, and other sectors
concerned and explain the goals and objectives of the project or program, its impact upon the
people and the community in terms of environmental or ecological balance, and the measures
that will be undertaken to prevent or minimize the adverse effects thereof.
Section 27. Prior Consultations Required. - No project or program shall be implemented by
government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are
complied with, and prior approval of the Sanggunian concerned is obtained: Provided,
That occupants in areas where such projects are to be implemented shall not be evicted
unless appropriate relocation sites have been provided, in accordance with the provisions of
the Constitution.
The law uses the term prior approval and the petitioner avers that this grants a plenary
power of approval and disapproval to the local government.
This construction should not stand. Such construction will grant an arbitrary power to several
local politician which concerns the national wealth.
The law should only be construed as to require the approval of the local government with
regards to the conduction of the consultation.
Furthermore this very court, in the Case of People v. Fajardo declared a municipal ordinance
for granting arbitrary power to the city mayor in issuing and declining the issuance of
building permits. x x x is a settled rule that such an undefined and unlimited delegation of
power to allow or prevent an activity, per se lawful, is invalid.1
E. The Validity of South Cotobatos Environmental Code
an essential requisite for a valid ordinance is among others, that is must not contravene
the statute 2
In the case of White Light Corporation v. The City of Manila, this court reiterated the wellestablished test for the validity of an ordinance:
It must not only be within the corporate powers of the local government unit to enact and
pass according to the procedure prescribed by law, it must also conform to the following
substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not
be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but
may regulate trade; (5) must be general and consistent with public policy; and (6) must not be
unreasonable.3

The South Cotobatos Environmental Code is an ordinance, it must never contravene a law.
This code is totally invalid for it kills the very intention of the Mining Act, it prohibits mining
operation required for the area.
F. Writ of Continuing Mandamus
Section 1. Petition for continuing mandamus. - When any agency or instrumentality of the
government or officer thereof unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust or station in connection with the
enforcement or violation of an environmental law rule or regulation or a right therein, or
unlawfully excludes another from the use or enjoyment of such right and there is no other
plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved
thereby may file a verified petition in the proper court, alleging the facts with certainty,
attaching thereto supporting evidence, specifying that the petition concerns an environmental
law, rule or regulation, and praying that judgment be rendered commanding the respondent to
do an act or series of acts until the judgment is fully satisfied, and to pay damages sustained
1 People v. Fajardo, G.R. No. L- 12172, August 1958
2 U.S. v Abendan, 24 Phil 165; U.S. v Chan Tienco, 25 Phil 89.
3 White Light Corporation v. City of Manila, G.R. No. 122846, Jan 2009

by the petitioner by reason of the malicious neglect to perform the duties of the respondent,
under the law, rules or regulations. The petition shall also contain a sworn certification of
non-forum shopping.
SEC. 16. General Welfare. - Every local government unit shall exercise the powers expressly
granted,
those
necessarily
implied
therefrom,
as
well
as
powers necessary, appropriate, or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general welfare. Within their respective
territorial jurisdictions, local government units shall ensure and support, among other things,
the preservation and enrichment of culture, promote health and safety, enhance the right of
the people to a balanced ecology, encourage and support the development of appropriate and
self-reliant scientific and technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment among their residents,
maintain peace and order, and preserve the comfort and convenience of their inhabitants
The Writ of Continuing Mandamus is not applicable with the DENR because it exercised its
duties well by using the Environmental Impact Assement because the LGU was able to
predict and evaluate the likely impact of the development of the Tampakan Mining. In the
case of Boracay Foundation vs Aklan there was need for a writ of continuing mandamus
because there was a failure on the part of DENR as an LGU to comply with the Local
Government Code 16. Found in Local Govt Code 16 is the duty to promote the peoples right
to a balance ecology.
PRAYER
WHEREFORE, premise considered, it respectfully prayed for that this Honorable
Supreme Court that Defendant-Petitioners prayer for writ of injunction be DENIED for having
no cause of action and the petition DISMISSED for being clearly unmeritorious.
Other just and equitable relief under the foregoing are likewise being prayed for.
Respectfully submitted.
Makati City for Manila City, Philippines. April 8, 2011.
The Office of The Solicitor General
Counsel for Plaintiff-Respondent
10th Floor, New Building,
Makati Avenue, Makati City

By:
ATTY. PAOLO COELHO
IBP Lifetime No. 67891; 5/10/2005
PTR No. 44568; 1/10/2011
Roll of Attorney No. 2005-001023
MCLE Compliance No. III 000899
Copy Furnished:
ATTY. JEFFREY A. ARCHER
Counsel for Petitioner
Unit 1200, Tall Building Condominium,
Espana, Manila